R v AB

[2020] NSWDC 521

District Court

New South Wales

Medium Neutral Citation:

R v AB [2020] NSWDC 521

Hearing dates:

14 August 2020

Date of orders:

11 September 2020

Decision date:

11 September 2020

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

Full-time custodial order to be served by way of aggregate term of imprisonment. For orders see [54]

Catchwords:

SENTENCE – sexual intercourse with child under the age of 10 – groom child for unlawful sexual activity – position of authority- first offence- in the home of the child – in the presence of another child

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Alesbhi v R; Esbhi v R [2018] NSWCCA 30

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002

JM v R (2014) 246 A Crim R 528

Markarian v The Queen [2005] HCA 25

Mill v The Queen (1988) 166 CLR 59

Muldrock v The Queen (2011) 244 CLR 120

R v ND [2016] NSWCCA 103

Category:

Sentence

Parties:

Regina (Crown)
AB (Offender)

Representation:

DPP (Crown) (Mr B Page)
Mr S Howell (Offender)

File Number(s):

2019/190213

Publication restriction:

Non Publication Order with respect to the name of the complainant or any information that may identify her.

Judgment

1. The offender, who I will refer to as AB so as to protect the identity of the victim, born in 1984, is before the court for sentence for:

1. Sexual intercourse with child under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900 for which the maximum penalty is life imprisonment and the standard non-parole period is 15 years (sequence 3);

2. Groom child under 14 years for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act 1900 for which the maximum penalty is 12 years and the standard non-parole period is 5 years (sequence 4); and

3. Intentionally carry out sexual act with child under 10 years of age contrary to s 66DC(a) of the Crimes Act 1900 for which the maximum penalty is 7 years and for which there is no standard non-parole period (sequence 11).

2. There are also matters on a Form 1 which the offender asks me to take into account when sentencing him. There is a charge of indecent assault person under 16 years of age contrary to s 61M(2) of the Crimes Act 1900, and a charge of incite victim under 10 years to commit indecent act contrary to s 61)(2) of the Crimes Act 1900. They both attach to sequence 3.

3. The agreed facts are as follows:-

1. At the time of the offences, the offender was in a domestic relationship with the victim’s mother JC.

2. Until May 2017, the offender, JC and the victim lived together in Ruse. From May 2017, they lived in Bradbury.

3. In July 2017, JC gave birth to a daughter to the offender.

Sequence 10 – Incite victim under 10 years to commit indecent act (DV)-T1 (Form 1)

4. While the family was living at Ruse, and the victim was aged 5, an initial incident took place involving the offender and the victim. The offender and the victim were wrestling on the victim’s bed and the victim accidentally kicked the offender. The offender lowered his pants, exposed his penis and told the victim to rub cream from a grey jar onto his penis which she did.

Sequence 9 – Indecent assault person under 16 years of age (DV)-T1 (Form 1)

5. After the family moved to their new house at Bradbury, there was a further incident one afternoon when JC was not at home. The offender and the victim lay facing one another on a bed. The offender moved his body up and down against the victim’s body. The victim saw the offender’s penis although the offender’s clothes remained on. The offender’s penis touched the victim’s stomach and legs.

Sequence 4 – Groom child under 14 years for unlawful sexual activity-T1

6. At the new house in Bradbury, there were occasions when the offender showed the victim pornographic videos using his mobile telephone. Some of these videos were of male ejaculation. The offender showed the victim these videos when they were alone together. On one occasion, the offender showed the victim the cover of a pornographic DVD he kept beside his bed. She believed that the title of the DVD was “Black Cock and White Pussies”. The facts do not allow me to make a finding beyond reasonable doubt, other than that the offender showed the victim these videos on more than one occasion.

Sequence 11 – Intentionally carry out sexual act with child <10yrs (DV)-T1

7. On an occasion at Bradbury, in May or June 2019, the offender and the victim were in the shower together. The offender was masturbating his penis and told the victim to “do it” but the victim refused. The offender ejaculated.

Sequence 3 – Sexual intercourse with child under age of 10 years (DV)-SI

8. The offender then used his hand to rub the victim’s vagina and then licked the victim’s vagina.

9. When these acts occurred in the shower, the younger child (the offender’s daughter) was also present.

10. On 15 June 2019, the victim told a school friend’s mother about the offender showing her videos of ‘white stuff coming out of a man’s private parts’. She also said that the offender had touched her genitals. On 17 June 2019, the victim’s disclosures were passed onto her school principal who reported it to the police. That day, and again on 19 June 2019, the offender was arrested.

11. On 19 June 2019, the offender was interviewed by police. He admitted to having shown the victim pornographic videos and also to having masturbated in her presence whilst in the shower. He denied having ever touched the victim.

12. Police seized a number of items from the offender’s home, including a bag of pornographic DVDs. One of those films was titled “Black Cocks in Tight Pussies #6”

Evidence

4. Before me are 2 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. Notice of Committal;

2. Charge Certificate;

3. Form 1;

4. Statement of Agreed Facts;

5. The offender’s criminal history;

6. The offender’s custodial history; and

7. Victim Impact Statement of IA dated 8 June 2020.

5. Exhibit 2 is a bundle of documents tendered by Mr Howell on behalf of the offender, which includes:

1. Affidavit of the offender’s wife dated 7 August 2020;

2. Letter from the offender’s sister dated 2 August 2020;

3. Letter from the offender’s parents dated 31 July 2020;

4. The offender’s Curriculum Vitae (CV); and

5. An email from Corrective Services dated 11 August 2020 with a letter from the offender dated 3 August 2020.

6. I was assisted by the written and oral submissions of Mr Howell on behalf of the offender and Mr Page on behalf of the Crown.

Exhibit 1

7. The offender has no relevant prior criminal history. He has one previous conviction for licence expired 2 years or more (in 2019) for which he was fined $300. For all intents and purposes, the offender has no criminal record.

8. The victim wrote a letter to the court, detailing the impact the offence has had on her life. IA said that she feels frustrated, scared and sad. She is worried about the offender hurting other kids, especially her sister. She is worried that AB may break out of gaol and come back for her. She has had to move schools, and she misses her friends and teachers. IA worries that the offender’s daughter (her sister) will grow up without a dad. She also says that she does not trust most males as she is scared that they may do similar things to her. IA does not like people touching her, as it reminds her of the offender.

9. The offending has had a profound impact on the victim’s life. Because of her tender age and fragility, we do not know what lasting ramifications the offending will have on IA’s psyche, although it may well have an effect in one way or another for her entire life. On behalf of the community, I acknowledge the harm perpetuated upon IA by AB.

Exhibit 2

10. The wife of the offender stated that she and the offender bought a home together but their home was repossessed in about 2010 after they fell behind on their mortgage payments. They had nowhere to live for a period of time. They camped outdoors and stayed in a hotel until a friend arranged for them to live with his mother. They eventually moved in with the offender’s parents. They had a son in 2013. She states that the offender was a hands-on dad, and was willing to do “whatever needed to be done”. In 2015 she learned that the offender was having an affair with IA’s mother, and in early 2016, the offender moved in with JC.

11. The news of the offender’s arrest was devastating for her and for the offender’s parents. Whilst AB has been in custody, the offender’s wife has had daily contact with him by telephone and by AVL once a fortnight. AB speaks to his son on weekends. She believes that goal has been very hard on the offender, as he cannot see his children. AB plans to live with his parents when he is released and his priority is their son. The offender’s wife says that she will continue to support the offender.

12. The offender’s older sister writes that she and the offender had a happy, worry-free childhood, and that they have a very close relationship. He has been a doting and fun loving uncle to her children. She observes that when she talks to the offender about his son, she sees pain on his face. In her opinion, knowing her brother, the offending could not be more out of character. She says that the offender has only ever talked about those who “entertain this lifestyle choice” with disgust and distaste. She believes that the offender is a good man, and she is committed to supporting him when he is released from custody.

13. The offender’s parents say that they are aware of the charges and that their support for their son remains strong. The offender had a happy childhood. When AB’s house was repossessed and his favourite Nana passed away, the offender fell on hard times. He was very upset and drained. They believe that their son has worked hard all his life, tried to be a good person and has been a terrific father.

14. The offender has been gainfully employed as a tiler since 2005. In a letter to the court, the offender writes that the past 14 months have been extremely difficult and he knows that it has been very hard for IA and her family. He says that he cannot express how sorry he is to IA and everyone involved, and acknowledges that his actions were unacceptable. He hopes that IA can have a normal life with no lasting issues. He states that he has let down his ex-partner, his wife and his son. He hopes he will not miss many more years with his son. He says that he “knows he is a good father, a good son and [a good] brother.” He has never been without a job and is family oriented. He says that he is heartbroken that his daughter will not remember him. Finally, he acknowledges that he is lucky to have such a supportive family.

Objective Seriousness

Sequence 4 – Grooming Child less than 10

15. The Crown submits that this offence falls at about the mid-range of objective seriousness. The behaviour was repeated and not isolated. It involved showing the victim pornographic videos and the cover of a pornographic DVD. This offending began at a time when the victim was 7 years of age. As noted previously, I find that this offending occurred on more than one occasion, but I am unable to make any further finding as to the number of occasions.

16. Mr Howell submits that the offending falls below the mid-range of objective seriousness. He states that the conduct of exposing IA to indecent sexual video content cannot be compared to, for example, providing her with an intoxicating substance or with any financial or other material benefit. The Crown submits that showing a child indecent material is not necessarily any less serious that providing a child with an intoxicating substance, particularly in circumstances where the grooming behaviour occurred on a number of separate occasions. On the evidence, I cannot find beyond reasonable doubt that AB exposed IA to the content persistently, only that he did so on more than one occasion.

17. I note the legislative yardsticks of the maximum penalty of 12 years and the standard non-parole period of 5 years, which indicates the seriousness with which the legislature views this type of offending.

18. I find that this offending falls at just below the mid-range of objective seriousness.

Sequence 11 – Intentionally carry out sexual act with child less than 10

19. The Crown submits that this offence falls at about the mid-range of objective seriousness. The Crown submits that this is because of the nature of the act, masturbating himself to the point of ejaculation, whilst IA was in close quarters with the offender in the shower.

20. Mr Howell submits that the masturbation and cunnilingus offences occurred during one incident. When these acts occurred, the offender’s daughter was also present. The offender requested that IA masturbate him, although when she refused to do so, he did not persist in his request. He submits that the offence falls below the mid-range of objective seriousness.

21. I note the legislative yardstick of the maximum penalty of 7 years imprisonment which indicates the seriousness with which the legislature views such an act.

22. I find that this offending falls just below the mid-range of objective seriousness.

Sequence 3 – Sexual intercourse with child under 10

23. The Crown says this offence falls at about the mid-range of objective seriousness. In making this submission, the Crown submits that the age of the victim was 7 and that the offence took place whilst IA was in close quarters with the offender in the shower. The Crown submits that the objective seriousness is not reduced merely because it did not involve penetration. He says that there is no hierarchy of sexual intercourse offences whereby penetration is, by that fact alone, necessarily more serious than other forms of sexual intercourse. The Crown submits that the conduct occurred in a manner which might have involved the exchange of bodily fluids, which increases the risk of transmission of disease.

24. Mr Howell submits that the nature of the sexual intercourse involved is a relevant objective factor. A ‘relatively brief licking’ of IA’s vagina is not to be equated objectively with an act of penile-vaginal penetration, fellatio or anal penetration. He submits that the sexual intercourse involved in this case is significantly less serious than acts such as those, and this factor alone places the offence below the midrange. Mr Howell states that although there is no hierarchy of sexual intercourse offences, there is a continuum. He concedes that IA was only 7 years of age at the time and that the offender occupied a position of trust (with respect to all the offending). He submits that those features elevate the objective seriousness of each of the offences.

25. I observe that the legislative yardsticks for this offence are the maximum penalty of life imprisonment and the standard non parole period of 15 years, by which the legislature has conveyed the seriousness of the offending. As was said by the court (of s 66A) in R v ND [2016] NSWCCA 103 at 39-40:

The reasons for this are clear: the age of a victim, which the Crown has to prove beyond reasonable doubt as being under 10, demonstrates in and of itself, the vulnerability of the victim to offences of this kind. Further, the likelihood that such a young person would be able to resist an adult is very low. As well, Courts have acknowledged the long-term psychological effects that such conduct can have upon a child. All of these features combine to demonstrate why the legislature and the Courts regard this offence as very serious.

In light of the seriousness of an offence against s 66A of the Crimes Act, Hoeben CJ at CL (with whom Harrison and R A Hulme JJ agreed) said the following in EG v R at [42]:

“General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated, and that they will receive significant punishment.”

26. I find that this offending falls just below the mid-range of objective seriousness.

Aggravating factors

27. The Crown submits that sequences 11 and 3 are both aggravated by the fact that they occurred in the presence of a child (21A(2)(ea)) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). All offences occurred in the home of the victim and all offences are aggravated by the fact that the offender abused a position of trust and authority over the victim. I do not double count that latter fact.

28. Mr Howell submits that there is not a sufficient factual basis to find the aggravating factor that the offence was committed in the presence of a child under 18, as there is no evidence that the offender’s daughter was aware of what was happening. Alternatively, Mr Howell submits that the factor can only be of limited significance due to her infancy. I note that the offender has agreed to the fact that “when these acts occurred in the shower [sequences 3 and 11] the younger child was also present”. I am able to find beyond reasonable doubt that the offending took place in the presence of a child under the age of 18. However, taking into account the child’s age, I am not able to be satisfied beyond reasonable doubt, that the offending will have a detrimental effect on the emotional well-being of the child: see Alesbhi v R; Esbhi v R [2018] NSWCCA 30 at 53-57, per R A Hulme J. Bearing that in mind, I cannot find, with the limited information before me, that the acts have the requisite effect on the child in whose presence the acts were performed. The evidence is that the child was 2 years of age. I acknowledge Mr Page’s argument that the presence of the child increased IA’s humiliation. However, there is no evidence upon which I can make that finding.

29. Mr Howell further submits that had the offence been committed outside of the home, it would not have meaningfully diminished the objective gravity. He concedes that the principle feature of aggravation is the breach of trust. The Crown submits that the fact that it is fairly typical for offences of this type to occur in the home and involve a breach of trust and authority, does not reduce their significance. I so find.

Mitigating factors

30. The Crown submits the following mitigating factors are present: the offender has no previous convictions, there is evidence of remorse and he pleaded guilty at the earliest possible opportunity.

Time in custody

31. The offender has been in custody for these offences since 19 June 2019. I will backdate his sentence to that date.

Plea of Guilty

32. It is not disputed that the offender pleaded guilty at the earliest possible opportunity and that he is entitled to a utilitarian discount of 25%.

General Deterrence

33. The Crown submits that when considering this category of offences, general deterrence is of great significance. Heavy custodial sentences are required if the courts are to protect young people from sexual assaults by adults. The Crown submits that this principle is reflected in the high maximum penalties as well as the standard non-parole periods. I observe that general deterrence and denunciation have a significant role to play in this sentencing exercise: see EG at 42.

34. There is no doubt that offences of this type involve a high degree of criminality and condign punishment is called for, not only to punish the offender but so that others are deterred.

Personal deterrence

35. The Crown submits that stern punishment is needed to deter the offender. Whist the offender has no like prior offending on his record, the offending occurred over a number of years, rather than as an aberrant episode as suggested by Mr Howell. I accept this submission.

Remorse and Prospects of Rehabilitation

36. Mr Howell submits that the offender has provided evidence of genuine remorse, in the handwritten letter to the court, where AB wrote that “words can’t explain how sorry I am towards the victim and everyone involved.” He submits that the offender has acknowledged the unequivocal damage his actions have caused. The Crown does not cavil with Mr Howell’s submission that the offender has shown remorse and I accept that he has.

36. Mr Howell further submits that AB has good prospects of rehabilitation consistent with his early guilty pleas, acceptance of the facts, expressions of contrition, prior good record and strong family support. The Crown accepts that as the offender will be placed on a child protection register for a period of time, that will necessarily mean that there will be fewer opportunities to offend. I acknowledge that the offender appears to have some developing insight into his offending. However, I cannot accept on the available evidence that the offender has good prospects of rehabilitation and that he is unlikely to re-offend on the balance of probabilities. Notwithstanding that comment, I find that he has some prospects of rehabilitation, and the court sincerely hopes that he will take every opportunity to address his behaviours whilst in custody.

Criminal History

38. The offender has a criminal history that is limited to a single traffic offence in early 2019. Mr Howell submits that he is effectively a person of prior good character.

39. The Crown submits that this is not a situation where the offender can rely on good character, as the offending behaviour continued over a number of years. Thus, the offending cannot be seen as an isolated incident or brief in duration, but was rather a pattern of behaviour.

40. I take into account the offender’s lack of criminal history, but I note that it is to be afforded limited weight in the circumstances of this type of offending.

Totality

41. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending: see Mill v The Queen (1988) 166 CLR 59 at [63].

42. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. Mr Howell submits that an aggregate sentence is appropriate in this case because the principle of totality requires some accumulation of sentences: see JM v R (2014) 246 A Crim R 528 at [39].

43. I have also had regard to the principle of proportionality.

Threshold

44. Having considered all the possible alternatives, I am satisfied that the section 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offences, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Special Circumstances

45. Given the terms of s54B(3) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period (which is imprisonment for 15 years for sexual intercourse with a child under 10 years, and 5 years for groom child under 14 years) are the special circumstances that I find, which are that this will be the offender’s first time in custody, that he will require constant supervision, counselling and rehabilitation upon his release and that there will necessarily be some degree of accumulation between the sentences. I have deviated to a ratio of approximately 66.6% because of special circumstances.

Form 1

46. As indicated earlier, I have been asked to take into account two offences on a Form 1 basis when sentencing the offender, the details of which I have already set out above. In this matter, this has the effect of modestly increasing the sentence that would otherwise have been imposed. Given what I have already said about general deterrence, the increase operates to recognise the community’s entitlement to retribution for the Form 1 offences, although the focus remains on the primary offence. I have taken these offences into account and I have carefully considered s33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.

Sentence

47. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given the offender’s need for counselling and ongoing rehabilitation before he is released into the community, which is entirely unexplored in the evidence.

48. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

49. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen [2005] HCA 25.

50. In determining an appropriate sentence I have kept in mind the legislative guideposts of the maximum penalty and the statutory non-parole period for each offence.

51. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.

52. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 8 years, 6 months, with a non-parole period of 5 years, 8 months.

53. As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows:

1. For Sequence 3, taking into account the matters on the Form 1, I would have imposed a sentence of 7 years, 6 months, less 25% for the plea of guilty or 5 years, 7 months (rounding down). I would have imposed a non-parole period of 3 years 9 months.

2. For Sequence 4, I would have imposed a sentence of 4 years, less 25% for the plea of guilty, or 3 years. I would have imposed a non-parole period of 2 years.

3. For Sequence 11, I would have imposed a sentence of 3 years, less a discount of 25% for the plea of guilty, or 2 years, 3 months.

Orders

54. AB, please stand.

55. You are convicted of the offences of:

1. Sexual intercourse with child under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900;

2. Groom child under 14 years for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act 1900; and

3. Intentionally carry out sexual act with child under 10 years of age contrary to s 66DC(a) of the Crimes Act 1900.

56. You are sentenced to an aggregate term of imprisonment for 8 years, 6 months. Your sentence will commence on 19 June 2019.

57. I impose a non-parole period of 5 years, 8 months, which will expire on 18 February 2025.

58. Your head sentence will expire on 18 December 2027.

59. AB, do you understand the orders I have made?

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Decision last updated: 11 September 2020